MAURA CATHERINE MILLICHAP and COMCARE
[2009] AATA 127
•26 February 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 127
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/6222
GENERAL ADMINISTRATIVE DIVISION ) Re MAURA CATHERINE MILLICHAP Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President P E Hack SC Date26 February 2009
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and substitutes a decision that Comcare is liable to pay Mrs Millichap compensation in accordance with the Safety, Compensation and Rehabilitation Act 1988 (Cth) in respect of the condition of adjustment disorder with mixed anxiety and depressed mood.
.................[Sgd].............................
Deputy President
CATCHWORDS
WORKER’S COMPENSATION - Commonwealth Employees – adjustment disorder contributed to by employment - failure to obtain a transfer or benefit – insufficient evidence that any failure to obtain a benefit caused, or contributed to the disease or injury - decision under review set aside - substitute a decision of liability to pay compensation in respect of the condition of adjustment disorder with mixed anxiety and depressed mood.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 7(4)
Trewin v Comcare (1998) 84 FCR 171
Hart v Comcare (2005) 145 FCR 29
REASONS FOR DECISION
26 February 2009 Deputy President P E Hack SC introduction
1.The applicant, Mrs Maura Millichap, was an employee of the Australian Taxation Office (the ATO) between November 2000 and July 2007. In December 2006, Mrs Millichap commenced suffering from a psychiatric condition subsequently described as an adjustment disorder with mixed anxiety and depressed mood.
2.Mrs Millichap attributes this condition to her employment in the ATO. The respondent, Comcare, accepts that Mrs Millichap suffers from the condition and that her employment contributed in a material degree to the condition [1].
[1]Exhibit 9, paragraph 4.4
3.But Comcare says that it is not liable to pay compensation to Mrs Millichap because her failure to obtain a transfer or benefit in connection with her employment contributed to the condition. Thus, it is said, her condition does not answer the description of injury in the compensation legislation.
4.The only issue to be decided is whether that contention is made good.
the legislation
5.By virtue of s 14 of the Safety, Rehabilitation and Compensation Act1988 (Cth), Comcare is liable to pay compensation in accordance with that Act in respect of an injury suffered by an employee if that injury results in death, incapacity for work or impairment.
6.The expression “injury” was defined at the time[2] as meaning, relevantly:
[2]It has since been amended by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)
“(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)…
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.” [Emphasis added]
7.It is the words that are emphasised that are the focus of this case. The expression “disease” was defined as meaning, relevantly:
“(a)any ailment suffered by an employee; or
(b)…
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation”.
8.I should add that I am not presently concerned to determine the extent of any compensation to which Mrs Millichap may be entitled or whether she remains afflicted by her condition. My sole task is to determine the question posed by s 14 of the Act, that is, is Comcare liable to pay Mrs Millichap compensation in accordance with the Act for the condition “adjustment disorder with mixed anxiety and depressed mood”?
factual background
9.Much of the attention of Mrs Millichap was focussed upon the minutiae of her relationships with her supervisors in the ATO. Fortunately, it is neither necessary nor possible for me to make findings about those relationships except where the relationships bear upon the critical question of whether Mrs Millichap’s condition arose because of her failure to obtain a transfer or benefit in connection with her employment.
10.During the course of a lengthy cross-examination Mrs Millichap impressed me as an intelligent woman who had quite a considerable, almost obsessive, grasp of the details of her case. Whilst she was certainly of the view, which she frequently expressed in the course of the hearing, that she had been badly treated I do not regard her perception as being at all unusual nor do I regard it as detracting from my general impression that her evidence was reliable. Except to the extent set out below I accept her evidence. From that evidence, and from the contemporaneous records, the following history emerges.
11.Mrs Millichap commenced working in the ATO in 2000 when she was aged 48 years. She was attached to the Call Centre at the Upper Mt Gravatt office of the ATO. In late 2002, Mrs Millichap suffered an injury to her neck and shoulders. In 2004, Mrs Millichap suffered an injury which caused, and continues to cause, tinnitus like symptoms. The effect of these two injuries, which arose in the course of her employment, was that by early 2006, Mrs Millichap was unable to be employed in the Call Centre. The ATO accepted that Mrs Millichap had that limitation and arranged for her to work in the “Shopfront” at Upper Mt Gravatt in a position dealing with enquiries from persons who attended that office for assistance. Mrs Millichap considers herself to have been an efficient and effective employee in that role and there is material amongst the papers that supports that view.
12.Mrs Millichap’s immediate supervisor in the ATO was a person who I shall call “the Supervisor”[3] and, at the level above that, was “the Acting Director” of the Call Centre. On 7 March 2006, the Supervisor sent an e-mail to Mrs Millichap pointing out that her position at the Shopfront was temporary and was in the nature of an “on-going trial”. The possibility of an offer for a permanent position was mentioned, however that was said to be dependent upon “a number of factors including performance, vacant positions and funding.”
[3]Given the criticisms made of her supervisors by Mrs Millichap, and their inability to answer those criticisms, it would be unfair to them to name those persons.
13.In March 2006 Mrs Millichap applied for leave to travel overseas in June/July to visit an ill relative. Her request was refused by the Supervisor. That refusal was the subject of an internal review which was successful and Mrs Millichap was eventually able to take leave in September 2006.
14.She returned to work on 3 October 2006 and reported, as usual, to the Shopfront office. Not long after she arrived for work, she was told by the Supervisor that it was no longer possible for her to be employed in the Shopfront and that she was to return to the Call Centre, also at Upper Mt Gravatt but in a different building. The Supervisor told her that there was an administration position (that is, one not involving continual use of the telephone) for her in the Call Centre. This appeared not to be the case because Mrs Millichap had no allotted tasks and no regular duties. She spent a number of days doing inconsequential tasks becoming increasingly more frustrated with the situation.
15.On 25 October 2006, Mrs Millichap took the matter up with the Acting Director. He pointed out the difficulties of finding work for Mrs Millichap in the Call Centre that did not involve continuous telephone work. Mrs Millichap pointed out that she had enjoyed her work at the Shopfront and had got on well with others in that area. The Acting Director then made a comment to her that implied that he had a contrary view of Mrs Millichap’s abilities and that that view had been informed by comments made to him by the Supervisor. Mrs Millichap was perplexed and upset by this comment but the Acting Director would not explain the comment because, he said, the Supervisor was away.
16.Mrs Millichap continued to be troubled by this comment and frustrated by the absence of any meaningful work. She arranged for a meeting on 26 October 2006 with the Supervisor and the Acting Director and involving her trade union representative, Mr Lynch. Mr Lynch took notes of the meeting from which he produced a typescript account of the meeting. The copy that is in evidence[4] describes the purpose of the meeting as being:
“to establish what measures if any had been taken to secure a permanent position for [Mrs Millichap]”.
[4]The respondent had a version of minutes with slight differences in the text however it was unable to explain the reason for the differences and did not rely upon that copy.
17.Despite that, the minutes record that the initial discussion focussed upon the exchange with the Acting Director the previous day. Mrs Millichap is recorded as having been “upset and distressed” at the Acting Director’s comment and the initial page of the minutes describes matters that touch upon the issue of perceived competence before, at the foot of the page, reference is made to the possibility of Mrs Millichap being transferred. Mr Lynch, when asked by Mrs Millichap in cross-examination about the purpose of the meeting, said:
“That was why you called the meeting, because of what [the Acting Director] said.”
The spontaneity of his answer was such that I was not left in any doubt that his evidence and his recollection were genuine. But for all that, it is plain from the minutes that the meeting was concerned with both aspects, that is, Mrs Millichap’s concerns about perceptions of her competence and the prospects of her obtaining a transfer. It is material to the case for Comcare that Mrs Millichap agrees that, in the course of this meeting, she said that she “was bored out of her brain” and that she “was prepared to work anywhere in Brisbane”.
18.Mrs Millichap‘s concerns about the adverse comments about her work performance were not addressed to her satisfaction at the meeting. When the issue was raised with the Supervisor she told Mrs Millichap that she was not prepared to discuss the issues. In the course of the meeting Mrs Millichap came to the view that the complaint about her work performance was without substance and that the issue was really “about a manager whose nose was put out of joint by an employee appealing her decision”.
19.Another matter discussed during the meeting was a referral to a government medical officer to ascertain whether Mrs Millichap could now perform duties that involved using the telephone to make outgoing calls. There appears from the minutes to have been an inconclusive discussion regarding this referral.
20.Mrs Millichap’s perception of having been singled out by her manager was increased when she saw the draft of the proposed referral to the government medical officer. That document repeated criticisms of her work performance. Mrs Millichap was “very distressed” by it. She tried, unsuccessfully, to have the report amended.
21.Following the meeting of 26 November 2006 it appears the Supervisor made enquiries about a position for Mrs Millichap in another office of the Australian Taxation Office. On 10 November 2006 the Supervisor sent Mrs Millichap an e-mail that referred to the fact of negotiations regarding a potential placement with “the ASE teams” at the Chermside office of the ATO. Mrs Millichap was invited to attend the Supervisor’s office to discuss the potential placement. It appears that that occurred on the following Monday, 13 November 2006 when Mrs Millichap told the Supervisor that she was considering declining the position because a placement in the Chermside office would prevent her from riding her bicycle to work and would prevent her from attending gym classes, both activities associated with her rehabilitation from the earlier neck and shoulder injuries. Mrs Millichap appears not to have rejected the possibility of a placement at Chermside at that meeting. She was reminded by the Supervisor of her offer, made at the 26 October 2006 meeting, to work at any office in Brisbane.
22.On 16 November 2006 the Supervisor e-mailed Mrs Millichap with details of a further position said to be available at Chermside with the “AQS team”. It was a permanent position with a three month trial. Mrs Millichap was informed that training was scheduled to commence on the following Monday, 20 November 2006. She was given the name of her potential supervisor. She telephoned that person who said that he knew nothing of the matter and that he was not then at the Chermside office and was unlikely to be there on the following Monday.
23.Later on the same day Mrs Millichap sent an e-mail to the Supervisor explaining in some detail why a position at Chermside was not suitable and was inconsistent with her rehabilitation programme. Despite this the Supervisor sent Mrs Millichap an e-mail on Friday 17 November 2006 telling her that she was “required” to commence duties at Chermside the following Monday.
24.Mrs Millichap put in place the mechanism for a review of the decision to transfer her to Chermside. Thereafter she remained at Upper Mt Gravatt office but during December 2006 and January 2007 had frequent days when she was not well enough to attend work. She consulted her local medical practitioner, Dr Hunt, on 30 November 2006, complaining of headaches and anxiety. She attended Dr Hunt again on 18 December 2006 and described herself as “a lot more stressed”, a condition she attributed to “the issues with Comcare and her work”. Dr Hunt diagnosed an anxiety depressive disorder. According to Dr Hunt, Mrs Millichap “repetitively and consistently stated [that] it was the work situation that caused her symptoms.”
25.Subsequently Mrs Millichap saw another general practitioner, Dr Huttermeister. That doctor’s clinical notes are in evidence. The notes of the attendance on 22 January 2007 record a complaint of “being harassed”.
26.On 28 February 2007 Mrs Millichap lodged a claim for compensation for a condition she described as “stress/anxiety/depression”. She described “harassment and bullying by supervisory staff” as starting the chain of events that lead to her injury and described “management activities and attitudes to me as a result of my appeals regarding employment actions” as the cause of her illness.
27.Mrs Millichap was seen by Dr Eric De Leacy, a consultant psychiatrist, on 17 May 2007 and at the request of Comcare. I will consider the detail of his report below. It is sufficient for present purposes to note that he diagnosed the condition as adjustment disorder and that her employment was likely to have contributed to the condition.
28.On 7 July 2007 Mrs Millichap’s claim for compensation was rejected because the decision-maker “was satisfied that [Mrs Millichap’s] failure to secure an alternative permanent position in a location that [she] approved of constituted a failure to obtain a benefit”. Thus her accepted condition did not satisfy the definition of injury in the Act.
the issues
29.Given the way in which the case was presented there are two issues that fall to be decided. They are:
(a)did Mrs Millichap fail to obtain a transfer or benefit in connection with her employment? and,
(b)did that failure cause the condition?
30.Comcare says that both of these questions should be answered against Mrs Millichap.
did mrs millichap fail to obtain a benefit or transfer?
31.Comcare’s Statement of Facts and Contentions[5] did not identify with any precision the benefit or transfer that Mrs Millichap failed to obtain. Mr Pappas, counsel for Comcare, identified the features of transfer or benefit as being a transfer of Mrs Millichap back to the Upper Mt Gravatt Shopfront, or the benefit of retaining that position, or the failure to obtain a position of permanency commensurate with her accepted conditions. Subsequently Mr Pappas submitted that this issue was to considered by reference to the question:
“Was the applicant, as at October 2006, seeking one, some or all of,
(a)a move away from her ‘non-job’ at the Upper Mt Gravatt Call Centre;
(b)a permanent position accommodating her physical limitations; or,
(c)a job in the Brisbane Central Business District or Upper Mt Gravatt offices of the Australian Taxation Office but not elsewhere.”
[5] Exhibit 9.
If the question was answered “yes”, so the argument went, then Mrs Millichap had failed to obtain a benefit or transfer.
32.I have considerable reservations about this argument. It is founded on the observations of Heerey J in Trewin v Comcare[6]. That case is authority for the proposition that a benefit to which an employee is entitled as a matter of right, in the sense of being legally or administratively enforceable, is nevertheless within the exception to the definition of “injury”. In Trewin the Tribunal had found that all of the employee’s work-related stressors had been caused by her failure to obtain permanent employment. The picture presented in the present case is far more complex. The perception held by Mrs Millichap was that all she considered had been done to her – removal from the Shopfront, the failure to give her meaningful work, the baseless allegations about her performance and the transfer to the Chermside office – had been done by way of “payback” for her earlier, successful, appeals.
[6] (1998) 84 FCR 171.
33.As the present case demonstrates, it may be possible to characterise every adverse incident of employment as a failure to obtain a benefit. At a superficial level it may be said that employees have “understandings or expectations”[7] that they will not be bullied in the workplace. Thus a condition resulting entirely from bullying is capable of being characterised as a failure to obtain the benefit of not being bullied. It seems absurd to suggest that such a condition would not be compensable.
[7] See Trewin v Comcare (1998) 84 FCR 171 at 177.
34.One matter of particular difficulty in the present case arises from the fact that Mrs Millichap did not consider the events in terms of benefits or transfers, rather, she viewed the events as referable to a campaign of bullying or harassment. In such a case, the question arises as to whether the failure to obtain a benefit or transfer is to be viewed objectively or subjectively. Ultimately I need not decide that interesting question in the present case because I am so clearly of the view that the second issue must be answered against Comcare.
did the failure to obtain a benefit or transfer cause the condition?
35.I propose to assume, rather than decide, that Mrs Millichap failed to obtain a benefit or transfer. If that assumption be made the question is whether I am satisfied that that failure materially contributed to her condition. As is evident, I am not so satisfied.
36.The question of causation is discussed in the decision in Hart v Comcare[8]. In that case the Full Court of the Federal Court was concerned with the situation of an employee who had suffered from an adjustment disorder, brought on, on the findings of the Tribunal, by two concurrent causes, the failure to obtain a promotion and the events connected with the process of promotion. It was accepted that the failure to obtain a promotion materially contributed to the adjustment disorder however the employee argued that the words of exclusion had to be read in such a way that restricted their operation to cases where there were no other work related causes. The Court rejected the argument, saying[9]:
“[20] The task is one of statutory construction. This is a beneficial statute. Nevertheless, conformably with that, it is necessary to construe the words used by the Parliament.
[21] The so-called proviso in the definition does not exclude causes. It provides that if a disease or[[10]] injury which would otherwise fall within the definition (‘any such’) is one which answers a description (relevantly here: ‘suffered as a result of ... the failure to obtain a promotion’), the disease or injury is not an ‘injury’ as defined. The words are satisfied here. There was no debate that the factual findings made by the Tribunal amount to a conclusion that the disease or injury suffered was as a result of the failure to obtain the promotions.
[22] In order to succeed, the appellant must assert, as she does, that operative causes are not excluded and that given the provision's purpose some modifier should be read into the words to restrict the effect of the exclusion to circumstances where there were no other employment related causes. We do not agree. The operation of the provision had the evident purpose of removing from the field of compensation a disease, injury or aggravation which was a result of something. We see no evident purpose to remove from the field of compensation a disease, injury or aggravation which was only a result of that thing. The words do not readily admit that construction. The cases on multiple causes in tort or general law do not assist that inquiry.
[23] It will in any case be for the Tribunal to examine the facts, assess the reasons for the disease, injury or aggravation and come to conclusions in respect thereof. Whether in any given case, those findings allow a conclusion that the condition was suffered as a result of one or more of the matters referred to in the proviso, may be a factual question, or perhaps a legal question. Here, however, the findings were clear. The failure to obtain the promotions materially contributed to the condition and there is no issue but that the condition was suffered as a result of the failure to obtain the promotion.”
[8] (2005) 145 FCR 29.
[9] (2005) 145 FCR 29 at [20] – [23].
[10] The report uses the word “of” here but that seems plainly to be a typographical error.
37.Comcare relies upon the evidence of Dr De Leacy for the conclusion that the failure to obtain a permanent transfer to the Shopfront in October 2006 and the failure to obtain a position within the Australian Taxation Office that suited her expectations contributed to, and thus caused, Mrs Millichap’s condition. Dr De Leacy saw Mrs Millichap on 17 May 2007 for a period of one hour. That interview lead to a report dated 24 May 2007 but dictated by Dr De Leacy immediately after the interview. I have, as well, the benefit of his clinical notes from that interview (and, fortunately, a typescript transcription of the handwritten notes).
38.The 24 May 2007 report discusses, at some length, the history given by Mrs Millichap before concluding that the diagnosis was one of adjustment disorder with anxiety and depressed mood. Dr De Leacy offered the comment that such a condition is a response to a specific stressor and usually abates when the stressor is removed. He described the “known causation factors” in these terms:
“The factors in this case appear at face value to be the factors that have been stated by Mrs Millichap which include a range of incidents in the workplace which have been described as bullying and discriminatory…From the history given, it appears that the workplace conditions lead to the development of her disorder. However it is not known what the exact interplay between the parties was and what role Mrs Millichap’s personality played in the escalation of the matter.”
At a later point Dr De Leacy reported on the relationship between Mrs Millichap’s condition and her employment. He said:
“It appears that there has been friction in the workplace and according to the story given by Mrs Millichap, she has been discriminated against and bullied and subjected to unfair treatment. If this is the case, this would have given rise to a stress related condition. Even if this is Mrs Millichap’s perception, it is still a likely cause of her developing the stress reaction. Mrs Millichap perceives that she has been unfairly treated in the workplace. Such a perception has caused her to develop an illness, which has been described above.”
39.Subsequently, and after the commencement of these proceedings, Dr De Leacy was asked by the solicitors for Comcare to:
“provide a supplementary opinion commenting on whether either of the following factors materially contributed to the Applicant’s condition:
1.Her failure to obtain a permanent transfer to the Shopfront in October 2006; and
2.Her failure to obtain a position within the Agency that suited her expectations (including her objection to a placement in Chermside in November 2006).”
40.It is, if I may say so, quite unhelpful in a case such as the present to seek an opinion in these terms. It would have been far more helpful to have asked Dr De Leacy whether it was possible for him to identify particular aspects of the treatment of Mrs Millichap in the workplace that contributed to the development of her condition and, if so, what those aspects were.
41.But, in any event, Dr De Leacy provided such a report. It is dated 15 July 2008. He did not see Mrs Millichap again but relied upon his notes and his recollections of Mrs Millichap from May 2007. He said of the task given to him:
“… I will endeavour to provide answers, but I must acknowledge this is a fairly difficult undertaking, commenting about an interview that took place more than one year ago.”
Despite those difficulties, Dr De Leacy responded to the questions posed in the following manner:
“1. Her failure to obtain a permanent transfer to the shopfront in October 2006;
It is clear that her failure to obtain a transfer to the shopfront in 2006 on a permanent basis contributed[[11]] to her condition. As I indicated in my report, the problems that arose occurred because of her being placed in a noisy environment and this apparently aggravated her tinnitus.
Tinnitus is a disabling condition. Noise could aggravate the condition and if she was working in a situation with multiple phones ringing and various ambient noises being present, this could be highly distracting for her.
I formed the impression when talking to her at the original interview that she coped quite well in the shopfront and managed to deal with the general public satisfactorily. If she was offered a permanent position in the shopfront she may have been quite content.
It was stated to me by your client that she felt that the transfer to the position located in the call centre was done as a form of retribution in relation to her winning her appeal with regard to the leave issue.
Therefore, in answer to the question, I consider that her failure to obtain a permanent transfer to the shopfront in 2006 contributed to the development of her condition.
2.Her failure to obtain a position within the Agency that suited her expectations (including her objection to a placement in Chermside in November 2006).
[11]In a subsequent report provided just prior to the hearing Dr De Leacy clarified that he meant by this “materially contributed”, “material”, he said in evidence, being something that was “not trivial”.
Please provide reasons for your opinion.
Her failure to obtain a position within the Agency that suited her expectations has contributed to her condition. It is not for me to give an opinion as to whether her expectations were reasonable, but it appears from the history given to me by your client that she feels that she has been treated unfairly because of the appeal issue that I have referred to above.
The fairness or otherwise of this decision would be argued by her employer. However, it is clear to me that regardless of fairness, her failure to obtain a position within the Agency that suited her expectations including her being placed at Chermside in November 2006, has contributed to the development of her condition.
It is clear that if she continued to work in a position that was suited to her and met her personal requirements that she would not have been likely to develop her psychiatric condition and require time off work as has occurred.”
42.In his evidence before me, Dr De Leacy expanded upon the matters in his second report. He was asked about the significant factors that he had been able to identify and isolate in Mrs Millichap. He replied:
“Well, she explained a number of issues. She spoke about being bullied in relation to a number of things, particularly in relation to not being granted leave when she needed it and having that granted another time, having won her appeal, having perceived what she thought was payback, being put in the noisy environment and not being allowed to continue in the Shopfront where she wanted to stay and later being offered a position at Chermside which wasn’t acceptable to her. These were the things that she found to be stressful. She said that the other stressors were being accused of making an error that was due to someone else’s error and not receiving an apology which she’d expected. She said that she was kept under surveillance. She said that she had been given a non-job and things of this nature.”
43.When asked about his reasons for the conclusion in the July 2008 report that the failure to obtain a permanent transfer to the Shopfront in October 2006 had contributed to the development of Mrs Millichap’s condition Dr De Leacy said:
“I came to the conclusion based on what Mrs Millichap had already told me about how she previously found the Shopfront position quite acceptable and found that the other position in the noisy environment was unacceptable and I basically relied on this information to answer that question.”
When asked what it was that led him to the opinion that a particular matter was a contributing factor Dr De Leacy said:
“Well, the level at which she mentioned it. She made quite an issue of noise. I mean, she spoke for more than one sentence, talking about her tinnitus, talking about how working in certain positions was a problem and she was quite animated about that. She said that wasn’t a problem in the Shopfront so I thought this was quite a significant point.”
Dr De Leacy subsequently confirmed that it was the fact of a matter being mentioned and the extent to which it was mentioned that led him to conclude that that factor had been a material cause of the condition.
44.I must say that I found Dr De Leacy’s evidence on the critical issues unsatisfactory. I can accept that he has a clear recollection of some aspects of Mrs Millichap’s consultation. I do not intend any disrespect to Mrs Millichap when I say that she struck me as having somewhat of an obsession about what she sees as her treatment at the hands of her supervisors and accordingly I can well accept that some aspects of the consultation might remain in Dr De Leacy’s mind. But he was first asked to turn his mind to what are the critical issues more than a year after the consultation. He was not asked to comment on the particular aspects of Mrs Millichap’s employment that contributed to the condition; he was asked, in effect, to swear to the issue. Moreover, critical conclusions in his report are presented without any demonstrated process of reasoning despite him having been asked to provide reasons.
45.Importantly, there was no question of Mrs Millichap’s “failure to obtain a transfer to the Shopfront in October 2006”. The question was posed to Dr De Leacy in this way because of the words used in the statutory definition but it is a gross overstatement of the position to say that there was ever any expectation on Mrs Millichap’s part that she could be “transferred” to the Shopfront. It is undoubtedly correct to say that she would have been content to remain working in the Shopfront but it is quite wrong to analyse the matter in terms of a failure to obtain a transfer. Dr De Leacy’s rationalisation of that conclusion from the fact of Mrs Millichap having mentioned that she found the Shopfront position quite acceptable and the other position unacceptable is quite unconvincing.
46.Dr De Leacy himself acknowledged the difficulty of commenting on these matters more than a year after the interview. His notes taken contemporaneously, and his original report prepared immediately following the interview, lend no support to the conclusion that a failure to obtain a permanent transfer and a failure to obtain a position that suited her expectations contributed to the development of the condition.
47.In the result I am unable to accept the evidence of Dr De Leacy on this aspect of the matter. Accordingly I am not satisfied that any failure to obtain a transfer or benefit caused, or contributed to, Mrs Millichap’s condition and thus I am satisfied that her condition answers the description of “injury” in s 4(1) of the Act.
conclusion
48.It follows that I would set aside the decision under review and substitute a decision that Comcare is liable to pay Mrs Millichap compensation in accordance with the Safety, Compensation and Rehabilitation Act 1988 (Cth) in respect of the condition of adjustment disorder with mixed anxiety and depressed mood.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: ..................[Sgd]...........................
Melissa Hamblin, AssociateDate of Hearing 28, 29 January 2009
Date of Decision 26 February 2009
Applicant Self-represented
Counsel for the Respondent Mr J Pappas
Solicitors for the Respondent Sparke Helmore
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